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[2015] ZALCJHB 227
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NUMSA and Another v Mavuma NO and Others (JR2724/12) [2015] ZALCJHB 227 (31 July 2015)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Case no: JR
2724/12
DATE:
31 JULY 2015
Not Reportable
In
the matter between:
NUMSA
.............................................................................................................................
First
Applicant
J
B
MASHABA
.............................................................................................................
Second
Applicant
And
DHELIWE
MAVUMA
N.O
..........................................................................................
First
Respondent
COMMISSION
FOR CONCILIATION
MEDIATION
AND
ARBITRATION
......................................................................
Second
Respondent
RUSTENBURG
BASE METAL
REFINERY
...........................................................
Third
Respondent
Heard:
19 November 2014
Delivered:
31 July 2015
Summary:
A commissioner’s failure to deal with the substantial merits of
a dispute renders his or her arbitration award reviewable.
JUDGMENT
LALLIE
J
[1]
This is an application to review and set aside an arbitration award
of the first respondent who I will refer to as the commissioner
in
this judgement. It is opposed by the third respondent. A number of
material facts in this matter are common cause. They are
that the
second applicant was employed by the third respondent as a boiler
operator in 2001. Cleaning boilers formed part of his
responsibilities. It is common cause that the inside of a boiler
constitutes a confined space in terms of mining legislation and
the
third respondent’s rules. On 17 February 2012, the second
applicant was given instructions to clean boiler number seven
(“the
boiler”). He refused leading the third respondent to prefer the
following charge against him:
‘
Refusal
to perform a lawful work (sic) and to obey instructions given by the
supervisor without reasonable cause’.
He
was subjected to a disciplinary enquiry the chairperson of which
found him guilty of the charge and dismissed him. Aggrieved
by his
dismissal, he referred an unfair dismissal dispute with the
assistance of the first applicant to the second respondent,
who I
will refer to as the CCMA in this judgement. The dispute was
arbitrated by the commissioner who found his dismissal both
substantively and procedurally fair. In this application the
applicants challenge the reasonableness of the commissioner’s
arbitration award.
[2]
Giving reasons for her decision the commissioner took into account
that after the second applicant had been instructed a number
of times
to clean the boiler he demanded several training courses before he
could carry out the instruction. He however, failed
to present
evidence that additional training was required for him to carry out
the instruction. She found that the validity of
the risk assessment
was not disputed. She noted that the risk assessment reflected that
the use of a rope and harness was not necessary
and that fire was not
a hazard. Part of the evidence which influenced the commissioner’s
decision was that the second applicant
failed to show that he should
have been part of the risk assessment. He failed to prove that the
occupational hygienist was required
to sign on the day the task
should have been carried out. The second applicant admitted that the
boiler did not have fire or smoke
risks. He did not dispute that had
he carried the instruction out, he would have been assisted on how to
use the oxygen analyser.
When the instruction was issued another
employee was already cleaning the boiler without using a rope or
safety harness, conduct
which the commissioner construed to indicate
that the use of a rope and harness were not necessary for the second
applicant to
carry out the instructions. She concluded that the
second applicant raised all sorts of excuses to avoid carrying out
the instruction
which did not warrant him attending additional
training. The commissioner dismissed the applicants’ defence of
inconsistency
owing to lack of evidence. She found that the third
respondent had discharged the onus of proving both the substantive
and procedural
fairness of the second applicant’s dismissal.
[3]
The applicants submitted that the award stands to be reviewed and set
aside on the grounds that the commissioner committed a
gross
irregularity in the manner in which she conducted the arbitration as
she failed to apply her mind to the legislation that
regulates safety
issues at the workplace, in particular, the Occupational Health and
Safety Act 85 of 1993 (“the OHSA”).
Had she considered
the provisions of the 0HSA she would have concluded that the second
applicant’s fear to get inside the
boiler was founded in that
the third respondent’s instructions were in breach of the OHSA
and unlawful. The applicants also
based their attack on the award on
the manner in which the commissioner conducted her duties as she
misdirected herself regarding
the rule which applies to safety issues
in confined spaces and in reaching the conclusion that the
instructions given to the second
applicant were lawful. The
applicants submitted that one of the reasons which rendered the
commissioner’s award unreasonable
is that in reaching it, she
disregarded evidence which proved that the instruction was
unreasonable and in flagrant disregard of
the third respondent’s
own policies.
[4]
The test for review is settled, it is whether the commissioner
reached a decision a reasonable decision-maker could not reach
on the
facts before the commissioner. In this regard see
Sidumo
and Anothers v Rustenburg Platinum Mines Ltd and Others
[1]
.
Enunciating the test, the court in
Gold
Fields Mining SA (Pty) Ltd v CCMA and Others
[2]
found that the following questions assist in determining whether an
arbitration award is reasonable:
‘…
(i)
In terms of his or her duty to deal with the matter with the minimum
of legal formalities, did the process that the arbitrator
employ give
the parties a full opportunity to have their say in respect of the
dispute? (ii) Did the arbitrator identify the dispute
he or she was
required to arbitrate? (This may in certain cases only become clear
after both parties have led their evidence) (iii)
Did the arbitrator
understand the nature of the dispute he or she was required to
arbitrate? (iv) Did he or she deal with the substantial
merits of the
dispute? (v) Is the arbitrator’s decision one that another
decision-maker could reasonably have arrived at
based on the
evidence?’
[5]
In
Herholdt
v Nedbank Ltd and Others
[3]
the court interpreted the reasonableness of arbitration awards as
follows:
‘
In
summary, the position regarding the review of CCMA awards is this:
A review of a CCMA award is permissible if the defect
in the
proceedings falls within one of the grounds in section 145 (2) (a)
(ii), the arbitrator must have misconceived the nature
of the inquiry
or arrived at an unreasonable result. A result will only be
unreasonable if it is one that a reasonable arbitrator
could not
reach on all the material that was before the arbitrator.
Material errors of fact, as well as the weight and relevance
to be
attached to particular facts, are not in and of themselves sufficient
for an award to be set aside, but are only of any consequence
if
their effect is to render the outcome unreasonable.’
[6]
The commissioner failed to deal with the substantial merits of the
dispute because it is common cause that the second applicant
refused
to carry out the instruction. He however, maintained that his refusal
was justified as he was exercising his right to refuse
to carry out
instructions which exposed himself to danger. He testified that he
lacked practical training on the use of the safety
harness and rope
which were supposed to be used in confined spaces. He based his right
to refuse to carry out the instruction on
section 22 of the Mine
Health and Safety Act. He further testified that he was not trained
on emergency preparedness for employees
working in confined spaces in
terms of the Occupational Act of 1993. He was therefore in no
position to react in an emergency while
carrying out the instruction.
He persisted under cross examination that the third respondent’s
training department had informed
him that in terms of the third
respondent’s procedures he had to undergo practical training
for the use of the rope and safety
harness. He maintained that in
terms of the procedure which governed working in confined spaces, he
needed the safety harness and
a rope particularly because had he
fallen down in the boiler, it would not have been possible for people
to pick him up.
[7]
The applicants’ case before the commissioner was that the
second applicant’s refusal to carry out the instruction
was
justified because the instruction was in breach of legislation and
the third respondent’s own procedures. The commissioner
based
her decision that the second respondent did not need the rope and
safety harness in order to carry out the instruction on
the fact that
his fellow employee was cleaning the boiler without using the rope or
safety harness. She also made a finding that
training was not
necessary for the second applicant to carry out the instructions.
Working in confined spaces is regulated by legislation
and the third
respondent’s procedures. As the second applicant
exercised his right to refuse to carry out instructions
which are in
breach of legislation and the third respondent’s procedures
which regulate the safety of its employees working
in confined
spaces, a determination on the lawfulness and reasonableness of the
instruction the second applicant refused to carry
out could not
reasonably be made without taking into account the legislation and
procedures. She reached both findings without
taking into account the
substantial merits of the dispute before her. Her error lead her to
reach a decision a reasonable decision-maker
could not reach on the
evidence before her.
[8]
I have considered the question of costs and I am of the view that the
third respondent did not act unreasonably in opposing
this
application. In the circumstances a costs order will not be
appropriate.
[9] In the premises
the following order is made:
9.1
The arbitration award issued by the first respondent under case
number NWRB 1476-12 and dated 20 September 2012 is reviewed
and set
aside.
9.2
The matter is remitted to the second respondent to be arbitrated
de
novo
by an arbitrator other than the
first respondent.
Lallie J
Judge
of the Labour Court of South Africa
APPEARANCES
For
the Applicant: Mr Wright
Instructed
by: David Cartwright Attorneys
For
the Respondents: Mr Caddy
Instructed
by: DLA Cliffe Dekker Hofmeyr Inc
[1]
[2007]
12 BLLR 1097 (2008) (2) SA 24 (CC)
[2]
[2007] ZALC 66
;
[2014]
1 BLLR 20
(LAC) at para 20.
[3]
[2013]
11 BLLR 1074
(SCA) it para 25.